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CHHATRAPATI SHRI SHIVAJI MAHARAJ FIFTH STATE LEVEL MOOT COURT

COMPETITION- 2024

Before
The Hon’ble Supreme Court Ind
of iyana

WritJurisdiction
Under Art. 32 of the Constitution Of India

Indrayani N.G.O...........................
PETITIONERS
State Of Gujrana...........................
RESPONDENTS

WRIT PETITION (C
RIMINA)) No. / 201

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE SUPEREME COURT OF

INDIYANA

Memorial on Behalf Of the

Petitioner
CHHATRAPATI SHRI SHIVAJI MAHARAJ FIFTH STATE LEVEL MOOT COURT COMPETITION

MEMORIAL ON BEHALF OF THE PETITIONER

Table of Contents

Sr. No. LIST OF CONTENT Page no.

1. LIST OF ABBREVATIONS 02

2. INDEX OF AUTHORITIES 03

3. STATEMENT OF 05
AUTHORITIES

4. STATEMENT OF FACTS 07

5. STATEMENT OF ISSUES 09

6. SUMMARY OF PLEADINGS 10

7. ARGUMENTS ADVANCED 11

8. PRAYER 31

LIST OF ABBREVIATIONS

CrPC Code of Criminal Procedure

& And

SC Supreme Court

HC High Court

Govt Government

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MEMORIAL ON BEHALF OF THE PETITIONER

Ors. Others

Hon’ble Honorable

Art Article

SCC Supreme Court Case

No. Number

UOI Union Of India

v. Versus

LIST OF AUTHORITIES

1. STATUES

1. The Constitution of India................................................................................

2. 1992 Gujarat Remission policy......................................................................

3. Code of Criminal Procedure...........................................................................

2. CASES

1.

2. BALCO 2001 AIR SCW 5135

3. Collector of Customs v. Nathella Sampathu Chetty, 1962 SCC

OnLine SC 30

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4. Dr. P. Nalla Thampy Terah v. Union of India & Ors. [1985 Suppl.
SCC 189]
5. K.S. Puttaswamy v. Union of India (Privacy-9 J.), (2017) 10 SCC 1

6. K.S. Puttaswamy vs Union of India

7. K.S. Puttaswamy (retd.) & Anr. (Aadhar) v. Union of India & Anr.
(2019) 1 SCC 1
8. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1

9. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

10. Kuldip Nayar v. Union of India, (2006) 7 SCC 1

11. Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536

12. People’s Union for Civil Liberties (PUCL) & Anr. v. Union of
India & Anr. (2003) 4 SCC 399
13. People's Union for Civil Liberties (PUCL) [(2003) 4 SCC 399]

14. Peerless General Finance and Investment Co. Ltd. v. RBI [(1992) 2
SCC 343]
15. Premium Granites v. State of T.N. [(1994) 2 SCC 691]
16. Ram Jethmalani vs Union of India (2011) 8 SCC 1
17. R.K. Garg v. Union of India, [(1981) 4 SCC 675]
18. Rustom Cavasjee Cooper v. Union of India [(1970) 1 SCC 248]
19. S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra [1980 Supp
SCC 53]
20. State of Rajasthan v. Union of India, (1977) 3 SCC 592
21. Supreme Court Advocates-on-Record Assn. v. Union of India,
(2016) 5 SCC 1
22. Supreme Court of India v. Subhash Chandra Agarwal, (2020) 5
SCC 481
23. T.N. Education Deptt. Ministerial and General Subordinate
Services Assn. v. State of T.N., (1980) 3 SCC 97

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3. Dictionaries

1. Black’s Law Dictionary

4. Websites

1. www.aironline.com
2. www.scconline.com
3. www.supremecourtofindia.nic.in
4. www.manupatrafast.in

STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

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The Appellant submits this to the jurisdiction of this Hon’ble Supreme Court of Indriyani
under

Art. 32 of the Constitution of India.

Art. 32 in Constitution of India:

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2), Parliament may by law empower any other court to exercise within the local limits
of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause
( 2 ) (4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

STATEMENT OF FACTS ON BEHALF OF THE PETITIONER

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• In 2002, violent riots broke out in Gujrana following the burning of the Sabarmati
Express Train, resulting in the reported deaths of over 1000 individuals.

• Sharifa Bano, along with her family, including her three-year-old daughter Saniya,
fled their village of Dharampur to escape the violence spreading in Gaya.

•
On March 3, 2002, while fleeing, Sharifa Bano's family was attacked by a group of
20-30 individuals armed with weapons such as stickles, swords, and sticks in
Rampur village near Adilabad.

•
During the attack, Sharifa Bano, who was 21 years old and five months pregnant at
the time, was among three women brutally gang-raped by the assailants.
Additionally, her three-year-old daughter, Saniya, was killed as her head was
smashed.

• Seven members of Sharifa Bano's family were found dead, while six were reported
missing. Only Sharifa Bano and a two-year-old child survived the vicious assault.

•
Sharifa Bano, nearly naked, managed to reach the local Police Station in Limbgaon
to register the case. However, the FIR failed to mention her rape, and despite her
identification of 12 assailants, they were not named in the report.

•
Due to death threats against Sharifa Bano, the trial was relocated from Gujrana to
Mahadesham. The charge sheet was filed against 20 individuals, including six police
officers and two government doctors.

•
The trial lasted six years in the Special Court of CBI Mumbra, culminating in the
conviction of 11 accused individuals, including a Head Constable, for gang rape and
murder. The court also found six individuals not guilty due to lack of evidence, while
charges against two accused were abated due to their deaths.

• The convictions were upheld by both the High Court and the Supreme Court of
Indiyana. Consequently, all convicted individuals are serving life imprisonment in
Rajkot Jail, Gujrana.

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Mahesh Vora and others sought remission of the sentences from the Gujrana
Government, which was granted according to legal provisions.

Indrayani N.G.O. challenged this decision by filing a Writ Petition in the Hon’ble
Supreme Court of Indiyana

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• Subsequently, Mahesh Vora and others sought remission of the sentences from the
Gujrana Government, which was granted according to legal provisions.

• Indrayani N.G.O. challenged this decision by filing a Writ Petition in the Hon’ble
Supreme Court of Indiyana

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SUMMARY OF ARGUMENT

Whether the Writ Petition is maintainable in the Hon’ble Supreme Court of Indiyana

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ARGUMENTS ADVANCED

1. Whether the Writ Petition is maintainable in the Hon’ble

Supreme Court of Indiyana ?

It is most respectfully submitted that, Article 32 of the Constitution serves as a cornerstone of

our legal framework, ensuring the enforcement of fundamental rights enshrined in Part III of
the Constitution. These fundamental rights are not merely individual entitlements but
represent the collective values of justice, liberty, equality, and fraternity, as articulated in the
Preamble. Article 32, seeks to uphold these constitutional ideals and ensure that justice is

served to those whose rights have been violated.

The rights of Sharifa Bano, who suffered grave injustices during the unfortunate incident, are
at stake. By filing the writ petition, my client is effectively championing the cause of justice
and seeking redress for the violation of Sharifa Bano's fundamental rights under Article 21
(right to life and personal liberty) and Article 14 (right to equality and equal protection of
laws).

Moreover, when a state government grants remission of a sentence to a prisoner in Indiyana,

such an action can be challenged in the Supreme Court. The appropriate legal recourse for
such a challenge would typically involve filing a writ petition under Article 32 of the Indian
Constitution. This provision allows individuals to directly approach the Supreme Court to
protect their Fundamental Rights.

It is submitted that, In this case, Indrayani N.G.O would need to show that the grant of
remission violates fundamental legal principles or constitutional provisions. The suitable writ
sought from the Court would likely be a writ of certiorari. This writ enables the higher
judiciary to review decisions of lower tribunals or administrative bodies to ensure compliance
with legal norms and constitutional principles.

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In summary, the writ petition filed by Indrayani N.G.O. is undeniably maintainable before the
Hon’ble Supreme Court of Indiyana. Grounded in Article 32 of the Constitution, it seeks
touphold fundamental rights and principles of justice, particularly in the case of Sharifa Bano,
who suffered grave injustices. Moreover, the petition challenges the grant of remission, a
matter within the purview of the Supreme Court, and the suitable legal recourse, such as a
writ of certiorari, is available. Thus, considering the importance of upholding fundamental
rights and legal principles, the writ petition stands as a crucial avenue for seeking justice and
ensuring accountability.

It is submitted that, the writ petition was maintainable under Article 32 of the
Constitution as follows:

(i) that the order of grant of remission being an administrative order, there was
neither a statutory nor substantive right of appeal available to the aggrieved
parties. The only remedy available was to file a writ petition under Article 226 of
the Constitution before the High Court of Gujarat, or to file a writ petition before
this Court under Article 32 of the Constitution.

(ii)that this Court has on multiple occasions entertained writ petitions under
Article 32 of the Constitution in those cases where there existed a “gross violation
of fundamental rights”, or when an executive or administrative decision “shocked
the conscience of the public, the nation or of this Court”. In this context, reliance
was placed on the judgments of this Court in Epuru Sudhakar; Satpal vs. State of
Haryana, (2000) 5 SCC 170 (“Satpal”) and Mohammed Ishaq vs. S. Kazam
Pasha, (2009) 12 SCC 748 (“Mohammed Ishaq”). It was submitted that a similar
issue of maintainability arose in Mohammed Ishaq, wherein this Court observed
that the mere existence of an alternative remedy in the form of Article 226 does not
preclude an aggrieved person from approaching this Court directly under Article
32. The rule requiring the exhaustion of alternative remedies was described as

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being one of “convenience and discretion” as opposed to being absolute or

inflexible in nature.

1.1 Whether the writ petition filed by Indriyani N.G.O, as a third party,
maintainable?

It is argued that based on the Supreme Court decision dated 1/12/1988 -Petitions against
atrocities on women, in particular harassment of bride, bride-burning , rape, murder, or
petitions from riot victims comes under the Public Interest Litigation.
With reference to case B.P. Singhal vs Union of India even when no specific legal injury is
caused to a person or to a determinate class or group of persons by an act or omission of
the State or any public authority but when an injury is caused to public interest, a
concerned citizen can maintain an action for vindicating the rule of law and setting aside
the unlawful action or enforcing the performance of public duty.

It is submittd that, the locus to file this petition as a bona fide person and citizen of India.
That the petitioner seeks to discharge her fundamental duty under Article 51A(e) of the
Constitution of India, seeking to promote harmony and the spirit of brotherhood amongst
the people of India, as well as to denounce the derogation of the dignity of women. That
the petitioner seeks to uphold the rule of law and thus is not a mere busybody .

In light of the aforementioned legal precedents and principles, the writ petition filed by
Indriyani N.G.O, as a third party, is deemed maintainable. It serves the purpose of
addressing public interest concerns and seeks to rectify an arbitrary decision that
undermines the rule of law. As such, the petition warrants consideration and further
proceedings in accordance with the principles of Public Interest Litigation.

The impugned decision of granting remission to the convicts violates rule of law, is arbitrary
and not based on any relevant consideration. Therefore, the writ petition filed by the
petitioner in public interest is maintainable.

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MEMORIAL ON BEHALF OF THE PETITIONER

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Issue 2- Whether the decision of the Gujrana Government is legal

and correct in view of law ?

It is submitted that, in analyzing the legality and correctness of the decision of the Gujrana
Government regarding the remission orders for accused, the pivotal consideration lies in the
interpretation of the term "appropriate Government" as outlined in sub-section (7) of Section
432 of the Criminal Procedure Code (CrPC).

The essence of "appropriate Government" elucidated in sub-section (1) of Section 432

underscores the authority vested in the government of the state where the offender is
sentenced to make decisions pertaining to suspension or remission of sentences. This implies
that the state government where the sentencing occurred holds the jurisdiction to entertain
applications for remission and issue corresponding orders.
The consistency in defining the "appropriate Government," particularly emphasized in clause
(b) of sub-section (7) of Section 432, underscores the legislative intent to designate the
government of the state where the offender underwent trial and received sentencing as the
competent authority to consider remission applications. Notably, factors such as the location
of the crime or the convict's place of imprisonment are deemed irrelevant in determining the
appropriate government. Even in instances where the trial and investigation were transferred
to another state, as in the present case where proceedings were moved from Gujrana to
Mumbra, the authority to entertain remission applications remains with the state where the

sentencing was finalized.

It is submitted that since the ‘appropriate government’ in the instant case

is the State of Mahadesham, the remission policy of the State of
Mahadesham would be applicable. Thus, the remission policy of the State
of Gujrana dated 09.07.1992 would be wholly inapplicable. It was
contended that the remission policy dated 09.07.1992 of the State of

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Gujrana was not even in existence as on the date for consideration of the
remission applications as it was scrapped by way of a Circular dated
08.05.2014 pursuant to the letter of the Central Government circulated to
all the States/UTs requiring the implementation of the judgment of this
Court in Sangeet vs. State of Haryana, (2013) 2 SCC 452 (“Sangeet”),
wherein this Court held that before actually exercising the power of
remission under Section 432 of the CrPC, the appropriate government
must obtain the opinion of the Presiding Judge of the convicting or
confirming court and that the remission shall not be granted in a wholesale
manner. That pursuant to the cancellation of the policy dated 09.07.1992,
the State of Gujrana came up with a new remission policy dated
23.01.2014, and even this policy would not entitle remission of the accused
herein, for two reasons: firstly, because the remission policy of the State of
Mahadesham would be applicable as it is the ‘appropriate government’, and
secondly, the 2014 policy of the State of Gujrana bars the grant of
remission to convicts of heinous crimes.

In Ratan Singh, on discussing Section 401 of the erstwhile CrPC (corresponding to Section 432 of
the present CrPC) it was observed that the test to determine the appropriate Government is to
locate the State where the accused was convicted and sentenced and the Government of that State
would be the appropriate Government within the meaning of Section 401 of the CrPC. In the said
case, it was observed that the accused was convicted and sentenced in the State of Madhya Pradesh
and though he was discharging his sentence in a jail in Amritsar in the State of Punjab, the
appropriate Government under section 401 (1) of the erstwhile CrPC to exercise the discretion for
remission of the sentence was the State of Madhya Pradesh. It was further observed that even under
the new Code i.e. CrPC, 1973 as per sub-section (7) of Section 432 Writ Petition (Crl.) No.491 of
2022 Etc. Page 142 of 251 thereof, the phrase appropriate Government had the same meaning as the
latter provision had been bodily lifted from Section 402(3) of the erstwhile CrPC.

In the case of Hanumant Dass, the incident occurred in Dharmshala, Himachal Pradesh, but the
case was transferred to Gurdaspur, Punjab, while it was pending before the Sessions Court.

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Despite the transfer, the appropriate government for considering remission remained the one in
Himachal Pradesh, where the convict was originally sentenced.
Regarding the clemency power of a Governor under Article 161 of the Constitution, the decision
in M.T. Khan clarified that the appropriate government for granting remission is determined
based on the state where the convict was originally convicted, not the state where they are
currently serving their sentence.

In the case of V. Sriharan, it was reiterated that the appropriate government for considering
remission is the one in the state where the offender was sentenced, regardless of where the
offence was committed. This means that even if the crime occurred in one state, if the trial and
sentencing took place in another state, the latter state's government holds the authority to
decide on remission .

It is submitted that, according to the interpretation of sub-section (7) of Section 432 of the CrPC and
the judgments of the Court, it is determined that the State of Mumbara holds the authority to consider
applications for remission for the accused. This is because they were sentenced by the Special Court in
Mumbara. Therefore, the applications filed by Mahesh Vora and others seeking remission had to be
rejected by the State of Gujrana because it lacked the jurisdiction to consider them. The High Court of
Gujrana decision on this matter is incorrect.
when an authority lacks the legal right or power to handle a matter, such as the State of
Gujrana in this case not being the appropriate Government to issue remission orders under
Section 432 of the CrPC, any orders it issues in that regard are considered invalid. This
principle is similar to the concept of a court lacking jurisdiction to hear a case, making any
resulting judgment invalid. Therefore, the remission orders issued by the State of Gujrana are
legally void and must be canceled.

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Issue 3. Whether the decision given by Gujrana Government violates the spirit and
context of the provision of Sect.432 of the Code of Criminal Procedure, 1973?

Section 432(1)in The Code of Criminal Procedure, 1973 States that When any person
has been sentenced to punishment for an offence, the appropriate Government may,
at any time, without conditions or upon any conditions which the person sentenced
accepts, suspend the execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced.

The term "appropriate Government" is also mentioned in subsection (1) of Section 432. This
section states that when someone is sentenced for a crime, the appropriate Government has
the authority to suspend or remit the punishment at any time, with or without conditions, if
the sentenced person agrees.
So, logically, the term "appropriate Government" in clause (b) of subsection (7) of Section 432
also refers to the state government where the offender was sentenced or where the
sentencing order was made. This consistency is important because it shows that according to
Parliament's intent, only the state government where the offender was sentenced can
consider an application for remission and make a decision to reduce the convict's sentence.
This means that where the crime occurred or where the convict is imprisoned are not
relevant factors. These considerations are excluded from the definition of "appropriate
Government" in clause (b) of subsection (7) of Section 432. The key factor is where the
sentencing actually occurred.

Article 161 of the Indian Constitution gives the Governor of a State the power to pardon or
reduce the sentence of prisoners. In a specific case known as M.T. Khan, the question arose
about whether a Governor could grant such clemency to a prisoner who was convicted in one
state but serving their sentence in another state. The court decided that the Governor should
take advice from the Council of Ministers of the state where the conviction took place, not

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MEMORIAL ON BEHALF OF THE PETITIONER

where the prisoner is currently jailed. For example, if someone was convicted in Madhya
Pradesh and Maharashtra but serving their sentence in Andhra Pradesh, the appropriate
governments to advise the Governor would be Madhya Pradesh and Maharashtra, not Andhra

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Pradesh. at last add therefore state of mubara is the appropriate state

In the case of V. Sriharan, it was reiterated that the appropriate government for considering
remission is the one in the state where the offender was sentenced, regardless of where the
offence was committed. This means that even if the crime occurred in one state, if the trial
and sentencing took place in another state, the latter state's government holds the authority
to decide on remission

In simple terms, according to the interpretation of sub-section (7) of Section 432 of the CrPC and the
judgments of the Court, it is determined that the State of Mumbara holds the authority to consider
applications for remission for the accused. This is because they were sentenced by the Special Court in
Mumbara. Therefore, the applications filed by Mahesh Vora and others seeking remission had to be
rejected by the State of Gujrana because it lacked the jurisdiction to consider them. The High Court of
Gujrana decision on this matter was incorrect, as it followed this understanding.

In simple terms, when an authority lacks the legal right or power to handle a matter, such as
the State of Gujrana in this case not being the appropriate Government to issue remission
orders under Section 432 of the CrPC, any orders it issues in that regard are considered
invalid. This principle is similar to the concept of a court lacking jurisdiction to hear a case,
making any resulting judgment invalid. Therefore, the remission orders issued by the State of
Gujarat are legally void and must be canceled.
when a government authority doesn't have the power or authority to make a decision on a
particular matter, any decision they make on that matter is essentially worthless. This is
similar to a court making a decision on something it has no authority to decide on.This idea is
highlighted in a famous case called Anisminic vs. Foreign Compensation Commission. In that
case, a commission made a decision based on something they weren't allowed to consider.
The highest court said that decision didn't count because the commission didn't have the
authority to make it.So, when it comes to the government in the State of Gujarat, if they don't
have the right to make decisions about pardoning or reducing sentences for example, any
decisions they make on that matter aren't legally valid.

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Therefore the decision given by Gujrana Government violates the spirit and context of
the provision of Sect.432 of the Code of Criminal Procedure, 1973.

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PRAYER

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